FG v Commission for Children and Young People

[2003] NSWADT 103

CITATION:	FG v Commission for Children and Young People [2003] NSWADT 103
DIVISION:	Community Services Division
PARTIES:	APPLICANT FG RESPONDENT Commission for Children and Young People
FILE NUMBER:	034012
HEARING DATES:	24/04/2003
SUBMISSIONS CLOSED:	04/24/2003
DATE OF DECISION:	05/20/2003
BEFORE:	Britton A - Judicial Member
APPLICATION:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Jurisdiction
LEGISLATION CITED:	Child Protection (Prohibited Employment) Act 1998
CASES CITED:
REPRESENTATION:	APPLICANT In Person RESPONDENT R McIlwaine, Solicitor and T Chisholm, Solicitor
ORDERS:	Application dismissed for want of jurisdiction

Section 126 provides

(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

1 In this matter, the applicant, “FG”, seeks a declaration pursuant to s 9(1) of the Child Protection (Prohibited Employment) Act 1998 (“Child Protection Act”) that that Act is not to apply to him in respect of the offences of “offensive conduct” and “behave in an indecent manner”. The Child Protection Act makes it an offence for a “prohibited person” to apply for, undertake or remain in child-related employment: s 6. Child-related employment is defined in s 3 of the Child Protection Act. The threshold question in this matter is whether FG is a “prohibited person.” If he is not a “prohibited person” the Tribunal has no jurisdiction to entertain this application.

2 In my opinion, the applicant is not a “prohibited person” and, therefore, the Tribunal has no jurisdiction to make the declaration sought.

Background

3 The applicant was found guilty, but not convicted, at the Windsor (NSW) Local Court on 4 July 1996 of a charge of “offensive conduct” and in Queensland, at the Southport Magistrates Court, on 15 March 1994 was found guilty of “behave in an indecent manner”. No conviction was recorded in that respect of the later. (It is sufficient, however, for the purposes of the Child Protection Act that a relevant offence be found proven.) This charge was brought pursuant to s.7 of the Vagrants, Gaming and Other Offences Act 1931 (Qld) (“Vagrants Act”) which is that State’s equivalent of the NSW Summary Offences Act 1998.

4 Section 7 of the Vagrants Act made it an offence for a person, in or within view or earshot of a public place to sing “any obscene song or ballad” or to behave “in a riotous, violent, disorderly, indecent, offensive, threatening or insulting manner”. The maximum penalty applicable to the offence is imprisonment for six months.

5 Section 4 of the NSW Summary Offences Act provides a maximum penalty of three months imprisonment upon conviction of the offence of “offensive conduct”.

Is the applicant a “prohibited person”?

6 For the purposes of the Child Protection Act, a “prohibited person” is, among other things, one who has been “convicted of a serious sex offences”: s 5(1). Section 5(3) of the Act defines “serious sex offence” to mean “(a) an offence involving sexual activity or acts of indecency that was committed in New South Wales and that was punishable by penal servitude or imprisonment for 12 months or more or (b) an offence, involving sexual activity or acts of indecency, that was committed elsewhere and that would have been an offence punishable by penal servitude or imprisonment for 12 months or more if it had been committed in NSW.

7 No summary of facts has been obtained from Queensland, but it is apparent from the penalty imposed that the offence which brought FG before the Southport Magistrates’ Court was a very minor one. It may safely be presumed that it was the type of offence which would have been dealt with under the NSW Summary Offences Act which does not create or cover any “serious sex offences”.

8 That being the case, neither the offence in Queensland nor the offence in NSW is caught by s 5(3)(b) of the Child Protection Act and the applicant is therefore not a “prohibited person”.

Is the applicant a “registrable person”?

9 Section 5(1) of the Child Protection Act defines a “prohibited person” to also mean a person who is a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000 (“Offenders Registration Act”). A registrable person is defined in s 3 of that Act to mean:

“ a person whom a court has at any time (whether before or after the commencement of this section) found guilty and sentenced in respect of a registrable offence, but does not include:
(a) a person in respect of whom a court has made an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 or section 33 (1) (a) of the Children (Criminal Proceedings) Act 1987 in respect of the offence, or

(b) a person on whom a sentence has been imposed in respect of a single Class 2 offence, where the sentence did not include:

(i) a term of imprisonment, including a term of imprisonment the subject of a periodic detention order or home detention order, or

(ii) a community service order, or

(iii) a bond under which the person was required to submit to strict supervision,

where a reference to a single offence includes a reference to more than one offence of the same kind arising from the same incident, or

(c) a person whose conviction or finding of guilt has been quashed or set aside by a court, or

(d) a child who has been found guilty of:

(i) a single offence involving an act of indecency, or

(ii) a single offence under section 578B or 578C (2A) of the Crimes Act 1900

where a reference to a single offence includes a reference to more than one offence of the same kind arising from the same incident, or

(e) a person whom a court has found guilty of a registrable offence before the commencement of this section unless the person is an existing controlled person.

whether under the laws of New South Wales or (in whatever terms expressed) under the laws of a foreign jurisdiction.

10 It is plain that that the applicant is not a registrable person within the meaning of the Offenders Registration Act.

Conclusions

11 Accordingly as the applicant has not been convicted of a “serious sex offence” or is a “registrable person” he is not a “prohibited person”. Accordingly the Tribunal is without jurisdiction to make the order sought. It is to be noted that as the applicant is not a “prohibited person” s 6(1) and s 8(1) of the Child Protection Act have no application. This means it is not an offence for the applicant to undertake or remain in child-related employment. Nor is it an offence for any employer to commence employing, or continue to employ, the applicant in child-related employment.

Orders

12 Application dismissed for want of jurisdiction.